The Building Bridges Initiative (BBI) which is being fronted by President Uhuru Kenyatta and ODM Party leader Raila Odinga has faced headwinds after the Attorney-General Kihara Kariuki threw spanner in the works.
The AG is said to be backing multiple questions in the planned referendum. This is the same calls the Tangatanga wing of Jubilee regime led by Deputy President William Ruto has advocated for.
The handshake partners, Uhuru and Raila, seek to amend the Constitution through BBI and ODM has particularly been vocal supporting a one-question referendum.
In an advisory opinion to the Supreme Court in respect to a case filed by Nandi and Kericho county assemblies as well Makueni county government, Mr Kihara said a Bill that may contain one matter or issue of amendment will present major difficulties.
“The implication for such an interpretation will be that in the event that the people wish to exercise their sovereignty directly to amend various matters in the Constitution, they would need separate Bills for each of the matters or issues concerned,” Mr Kihara said.
He added that each of the Bills will have to undergo its own process as required by the Constitution, thus collecting one millions signatures of each Bill and subjecting each of them to the county assemblies, separately, a move that would have serious economic and political costs.
The AG further said there is no legal basis why a Bill to amend the Constitution should be treated differently from other Bills that are considered by Parliament. “Stated differently, we find no legal support for the view that a Bill to amend the Constitution may only be limited to a single matter or issue of amendment,” he said
He said Kenya has had two referenda — in 2005 and 2010 and in both cases, the questions were posed in respect of omnibus proposals with multiple issues.
On public participation, the AG said it has to be limited to informing a county assembly’s decision to approve or reject the draft Bill, since the county assembly cannot effect amendments to the Bill. He added that the approval is by a majority of the members of the county assembly, present and voting.
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Kericho and Nandi MCAs sought the guidance of the Supreme Court on the procedure to be followed while processing a constitutional amendment Bill, under a popular initiative. Makueni governor Kivutha Kibwana also sought a similar opinion. The speakers of the two county assemblies said it is not clear how a Bill containing multiple and unrelated issues will be voted for at the referendum.
Insiders at ODM feel that the President is not doing enough to protect and sell BBI and that they are ready to bolt out at any time.
